Punjab-Haryana High Court
Bhajna Ram vs State Of Punjab on 19 August, 2013
Author: T.P.S. Mann
Bench: T.P.S.Mann
Crl.Misc. M -26759 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Misc. M -26759 of 2013
Date of Decision : August 19, 2013
Bhajna Ram
.....Petitioner
VERSUS
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE T.P.S.MANN
Present : Mr Vipul Jindal, Advocate
for the petitioner.
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T.P.S. MANN, J.
By filing the present petition under Section 439 Cr.P.C, the petitioner seeks concession of bail, during the pendency of the trial of the case arising out of FIR No.46 dated 16.4.2013 registered at Police Station, Sahnewal, Ludhiana, for the offences under Sections 21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
According to the prosecution, SI Paramdeep Singh, alongwith his fellow officials, was present at bus stand of village Ramgarh in connection with checking of suspicious persons when he received a secret information that the petitioner, who was in the habit of selling intoxicants for a long time, would be coming on the Airport Sua Road towards Ramgarh with the intoxicant powder and in case, a naka was set up, he could be arrested, alongwith the intoxicant powder. Finding the information to be reliable and definite, SI Paramdeep Singh prepared a ruqa, on the basis of which aforementioned FIR was registered.
Further case of the prosecution is that during the nakabandi, Crl.Misc. M -26759 of 2013 -2- one person was seen coming and on noticing the police party, he tried to turn around. He was detained and on enquiry, he told that he was Bhajna Ram, son of Mangal Ram, r/o Prem Colony, Nandpur, Police Station, Sahnewal, Ludhiana. He was apprised of his right to have his person searched in the presence of some Gazetted Officer or a Magistrate. He replied that he had full faith in SI Paramdeep Singh and he could search him. The search of the petitioner led to recovery of 250 grams of intoxicant powder contained in a plastic bag and lying in the right pocket of the kurta worn by him. Two samples of 10 grams each were taken out, which were sealed by SI Paramdeep Singh with his seal bearing impression 'PS'. The petitioner was arrested. He was, thereafter, produced before SHO Mukhtiar Singh, who also affixed his seal bearing impression 'MS' on the sample parcels. The petitioner was, thereafter, produced before the Illaqua Magistrate, who remanded him in judicial custody up-to 30.4.2013. One sample parcel was deposited in the malkhana, which was lateron sent to the Chemical Examiner for analysis After completion of the investigation, the final report under Section 173 Cr.P.C. has since been submitted by the police against the petitioner.
Learned counsel for the petitioner has submitted that as per the report of the Chemical Examiner (Annexure P-3), the sample parcel was found to contain 7.83% of Diphenoxylate. Presence of Diphenoxylate in the intoxicant powder does not bring it within the purview of the Narcotic Drugs and Psychotropic Substances Act. Further, according to the prosecution, there were two seals of 'PS' and 'MS' on the sample parcels, whereas according to the docket prepared for sending the sample parcel to Crl.Misc. M -26759 of 2013 -3- the Chemical Examiner, the sample parcel had only one seal bearing impression 'PS'. It is further submitted that though the recovery was alleged to have been made on 16.4.2013, yet the sample parcel was sent for chemical analysis on 6.5.2013. Thus, there was non-compliance of the statutory instructions issued vide notification No.1/88 dated 15.3.1988. It is further submitted that the provisions of Section 50 of the Act were not complied with as it was required of SI Paramdeep Singh to inform the petitioner that he had right to get himself searched in the presence of either a Magistrate or a Gazetted Officer. It is finally submitted that the petitioner is more than 70 years of age and is behind the bars since 16.4.2013 and as the trial is yet to start, no useful purpose would be served by keeping the petitioner in custody. Hence, he be released on bail.
Presence of Diphenoxylate in the intoxicant powder brings the case within the ambit of the Act. Instead of going by the percentage of the incriminating constituent, the total mass of the recovered substance has to be taken into consideration. As 250 grams of intoxicant powder was allegedly recovered from the petitioner, he is liable to be prosecuted under the Act, moreso, when the said quantity falls within the definition of 'commercial quantity'.
As regards, the seal impressions on the sample parcel, needless to state that the same bore the impression of 'PS', which was the seal used by SI Paramdeep Singh while preparing the sample parcels. Merely, because impression of 'MS' of the seal used by SHO Mukhtiar Singh was not reflected in the docket is no ground to hold at this stage that no such seal impression was affixed on the sample parcel. It would be a matter of evidence at the trial as to whether the sample parcel was having impression Crl.Misc. M -26759 of 2013 -4- of only one seal or of two seals.
It is true that the recovery was effected on 16.4.2013 and as is apparent from the report of Chemical Examiner, the sample was received on 6.5.2013, yet the petitioner has not been able to point out as to how he stands prejudiced with the same. In such a period of time, the composition of sample parcel would not have undergone any change and, therefore, there would not be any different result achieved if the sample had been analysed earlier.
It is the case of the prosecution that the petitioner was duly apprised of his statutory right under Section 50 of the Act that if he wanted, he could be searched in the presence of a Gazetted Officer or a Magistrate. However, it was the petitioner, who reposed faith in SI Paramdeep Singh and, accordingly, consented for being searched by him.
The petitioner claims to be more than 70 years of age.
However, that itself is not sufficient to extend the concession of bail to him. It may also be worthwhile to note here that the petitioner is involved in three other cases under the Narcotic Drugs and Psychotropic Substances Act, as mentioned in para 8 of the petition. Merely, because he is on bail in those cases and recovery involved therein was non-commercial is no ground to extend the concession of bail to him. In the present case, the contraband recovered from the petitioner falls within the definition of 'commercial quantity'. In such a situation, the provisions of Section 37 of the Act would come into play, which bar the concession of bail, unless and until it is held that the petitioner has not committed the offence, or, in the event of his being released on bail, he is not likely to commit any similar offence. As mentioned above, the prosecution has collected sufficient material to Crl.Misc. M -26759 of 2013 -5- connect the petitioner with the commission of crime. Further, despite facing three more cases under the Act in which he is presently on bail, he has once again been apprehended in the present case with the allegations that he was in possession of 250 grams of intoxicant powder. If the petitioner can commit the present crime while being on bail in three other cases, it cannot be said that in case he is granted bail in the present case, he will not commit any such offence.
In view of the above, the petition is dismissed.
However, nothing stated above shall be taken as an expression on the merits of the case.
(T.P.S.MANN)
August 19, 2013 JUDGE
Pds.
Sharma Parmeshwar Dutt
2013.08.23 14:10
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